In the matter of Healthvue Pty Limited [2015] NSWSC 2060

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Healthvue Pty Limited [2015] NSWSC 2060 Hearing dates: 11 May 2015 Date of orders: 11 May 2015 Decision date: 11 May 2015 Jurisdiction: Equity - Corporations List Before: Brereton J Decision: Interlocutory process dismissed; winding up order made and liquidators appointed. Catchwords: CORPORATIONS – winding up – winding up in insolvency – failure to comply with creditor's statutory demand – presumption of insolvency – application for leave to oppose winding up application – failure to lodge evidence to support opposition – held, winding up order made. Legislation Cited: (Cth) Corporations Act 2001, s 459G, s 459S, s 467A Category: Procedural and other rulings Parties: Calvary Health Care Sydney Limited ACN 105 757 453 (plaintiff) Healthvue Pty Ltd ACN 149 138 036 (defendant) Representation: Counsel: E Hyde (plaintiff)

Solicitors: Norton Rose Fulbright Australia (plaintiff) Kemp Strang (defendant) File Number(s): 2015/58777

Judgment (ex tempore) 1. HIS HONOUR: By originating process filed on 25 February 2015, the plaintiff Calvary Health Care Sydney Limited seeks an order that the defendant Healthvue Pty Limited be wound up in insolvency and liquidators appointed. 2. The evidence establishes that a creditor's statutory demand for payment of a debt of $167,494.80 was served on the defendant at its registered office on 7 August 2014. 3. The defendant applied by process filed on 27 August 2014, pursuant to (Cth) Corporations Act 2001, s 459G, for an order setting aside or varying the demand. That application was heard by Black J on 3 February 2015, when his Honour made an order dismissing the application with costs. 4. The defendant has not made any payment on account of the sum demanded, either before or after the dismissal of the application to set aside the creditor's statutory demand. The defendant is presumed to be insolvent. 5. The originating process and supporting affidavit of Philip Charles Maloney of 25 February 2015 was served on the defendant at its registered office on 25 February 2015, as established by the affidavit of Ian McKerrell of 9 March 2015. In any event, the defendant on 26 March 2015 filed a notice of appearance expressing an intention to oppose the application and listing as the grounds of opposition the following: 1. the company is solvent and the company will seek to rebut the presumption of insolvency; 2. further, or alternatively, the plaintiff's debt is genuinely disputed and accordingly the plaintiff has no standing to bring the winding up proceedings; 3. further, or alternatively, the current application is an abuse of the winding up process since the plaintiff is using the winding up process to enforce a debt that is genuinely disputed. 4. further, or alternatively, the Court in its discretion under Corporations Act, s 467A, would refuse to wind up the defendant. 1. The defendant also filed on 26 March 2015 an interlocutory process seeking leave pursuant to Corporations Act, s 459S, to oppose the winding up application on the ground that the debt was genuinely disputed, that the defendant had an offsetting demand and that the use of the statutory demand procedure was, in the circumstances, an abuse of process. That interlocutory process was before the Court on 27 March 2015, when the Court made orders that the defendant serve the remainder of its evidence in support of the interlocutory process, together with evidence of solvency, by 15 April 2015. No further evidence in that respect has been served by the defendant, and there is no appearance on behalf of the defendant before the Court today to prosecute the interlocutory process. The Court orders that the interlocutory process filed 26 March 2015 be dismissed with costs. 2. Bradley Tonks and John Vouris, official liquidators, have consented to be appointed liquidators of the defendant. Calvary Healthcare ACT Limited, a creditor for the amount of $311,069, has filed a notice of intention to appear in support of the application. The affidavit of Philip Charles Maloney of 8 May 2015 establishes that the defendant remains indebted to the plaintiff for the debt the subject of the demand. The affidavit of Sophie Elizabeth Arnold of 9 March 2015 establishes due publication of notification of the application on the ASIC website and the affidavit of Elizabeth Maree Davies Docker of 25 February 2015 establishes lodgement of the requisite notice of filing of the application with ASIC. 3. The Court orders that the defendant be wound up in insolvency and Bradley Tonks and John Vouris of Level 8, 1 O'Connell Street, Sydney be appointed joint and several liquidators of the defendant.